United States District Court, D. South Carolina
RICHARD MARK GERGEL UNITED STATES DISTRICT JUDGE.
has brought this action pursuant to 42 U.S.C. §§
405(g) and 1383(c)(3) seeking judicial review of the final
decision of the Commissioner of Social Security denying her
claim for Disability Insurance Benefits ("DIB"). In
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 DSC, this matter was referred to a United States
Magistrate Judge for pre-trial handling. The Magistrate Judge
issued a Report and Recommendation ("R & R") on
June 5, 2019, recommending that the Commissioner's
decision be affirmed. (Dkt. No. 28). Plaintiff filed
objections to the R & R, and the Commissioner filed a
response. (Dkt. No. 30, 32). As explained below, the Court
reverses the decision of the Commissioner and remands the
case to the agency with instructions to award benefits from
January 28, 2014.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination
of those portions of the Report and Recommendation to which
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(1).
role of the federal judiciary in the administrative scheme
established by the Social Security Act is a limited one. The
Act provides that the "findings of the Commissioner of
Social Security as to any fact, if supported by substantial
evidence, shall be conclusive." 42 U.S.C. § 405(g).
"Substantial evidence has been defined innumerable times
as more than a scintilla, but less than preponderance."
Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir.
1964). This standard precludes de novo review of the
factual circumstances that substitutes the Court's
findings of fact for those of the Commissioner. Vitek v.
Finch, 438 F.2d 1157 (4th Cir. 1971).
the federal court's review role is a limited one,
"it does not follow, however, that the findings of the
administrative agency are to be mechanically accepted. The
statutorily granted right of review contemplates more than an
uncritical rubber stamping of the administrative
action." Flack v. Cohen, 413 F.2d 278, 279 (4th
Cir. 1969). Further, the Commissioner's findings of fact
are not binding if they were based upon the application of an
improper legal standard. Coffman v. Bowen, 829 F.2d
514, 519 (4th Cir. 1987).
Commissioner, in passing upon an application for disability
benefits, is required to undertake a five-step sequential
process. At Step One, the Commissioner must determine whether
the claimant is engaged in substantial gainful work. If the
claimant is not engaged in substantial gainful employment,
the Commissioner proceeds to Step Two, which involves a
determination whether the claimant has a "severe
medically determinable physical or mental impairment."
If the claimant has one or more severe impairments, the
Commissioner proceeds to Step Three, which involves a
determination whether any impairment satisfies one of the
designated list of impairments that would automatically
render the claimant disabled. Where a claimant does not
satisfy one of the listed disabling impairments, the
Commissioner must proceed to Step Four, which involves a
determination of the claimant's residual functional
capacity ("RFC"). Once the RFC is determined, the
Commissioner proceeds to Step Five to determine if jobs exist
in significant numbers in the national economy that the
claimant can perform in light of her RFC. 20 C.F.R. §
404.1520(a)(4). The claimant carries the burden of
establishing the requirements of Steps One through Step Four,
but at Step Five the burden shifts to the Commissioner. If
the Commissioner fails to carry his burden at Step Five, the
claimant is entitled to a finding of disability as a matter
of law. See Pearson v. Colvin, 810 F.3d 204, 209-10
(4th Cir. 2015).
the regulations of the Social Security Administration, the
Commissioner is obligated to consider all medical evidence
and the opinions of all medical sources, including treating
and examining physicians. 20 C.F.R. § 404.1527(b). This
includes the duty to "evaluate every medical opinion we
receive." Id. § 404.1527(c). Under what is
commonly referred to as the Treating Physician Rule, the
Commissioner is required to give special consideration to the
opinions of treating physicians of the claimant, based on the
view that "these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal
picture of [the claimant's] medical impairment(s) and may
bring a unique perspective to the medical evidence that
cannot be obtained from objective medical findings alone or
from reports of individual examinations, such as consultative
examinations or brief hospitalizations." Id.
§ 404.1527(c)(2). Under some circumstances, the opinions
of the treating physicians are to be accorded controlling
weight. Even where the opinions of the treating physicians of
the claimant are not accorded controlling weight, the
Commissioner is obligated to weigh those opinions in light of
a broad range of factors, including the examining
relationship, the treatment relationship, length of
treatment, nature and extent of the treatment relationship,
supportability of the opinions in the medical record,
consistency, and whether the treating physician was a
specialist. Id. §§ 4O4.l527(c)(1)-(5). The
Commissioner is obligated to weigh the findings and opinions
of treating physicians and to give "good reasons"
in the written decision for the weight given to a treating
source's opinions. SSR 96-2P, 61 Fed. Reg. 34490, 34492
(July 2, 1996).
opinions of non-examining sources and state agency medical
consultants must be weighed under the same standards of the
Treating Physician Rule, including the source's
"specialization". .. "support" from the
"relevant evidence" and other relevant factors.
§ 404.1527(c)(2). The Commissioner further pledges that
the opinions of non-examining sources will be evaluated on
"the degree to which these opinions consider all the
pertinent evidence . . ." Id. §
the final agency decision in a Social Security disability
claim rests with the Commissioner, it is well settled that a
disability decision by another governmental agency
"cannot be ignored and must be considered." SSR
06-03p, 2006 WL 2329939 at *6. The Commissioner recognizes
that another governmental agency's disability decision
and the evidence used to make that decision "may provide
insight into the individual's mental and physical
impairments and show the [claimant's] degree of
disability ..." under that agency's rules and
regulations. Id. at 7. The Fourth Circuit has held
that a Veterans Affairs ("VA") decision of
disability is entitled to "substantial weight,"
which reflects "the fact that both the VA and Social
Security programs serve the same governmental purpose of
providing benefits to persons unable to work because of a
serious disability." Bird v. Commissioner of Social
Security, 699 F.3d 337, 343, 344 (4th Cir. 2012). An
Administrative Law Judge ("ALJ") may give less
weight to a VA disability rating only "when the record
before the ALJ clearly demonstrates that such a deviation is
an American veteran of the Gulf War era, has been rated
disabled under the Veterans Administration (VA) disability
system effective October 15, 2013, based upon a combination
of severe impairments, including chronic migraine headaches,
major depressive disorder, bronchial asthma, and
abnormalities of the lumbar spine. Tr. 188-89, 221-25, 803.
Prior to the award of VA disability benefits, Plaintiff was
examined and evaluated by Dr. William Brannon, a board
certified neurologist, regarding her chronic migraine
headachess. Dr. Brannon described Plaintiffs pain as
"distracting, attention and concentration is dulled,
attitude is acrimonious during headaches." Tr. 381. He
went on to state that Plaintiff was having employment
difficulties because of the frequency and severity of her
headaches and that "under the present circumstances this
veteran is indeed unemployable." Tr. 382.
migraines became increasing frequent in late 2013, resulting
in her missing work as much as one to two days per week. Tr.
384. An examining VA physician, Dr. Pamela Crawford, opined
that "the veteran's major depressive disorder is
more likely than not proximately due to the veteran's
service connected migraine headaches, traumatic arthritis of
the lumbar spine." Tr. 385. Plaintiffs migraines were
initially treated with Fioricet, a highly addictive
barbiturate, and later with Botox injections. Tr. 357, 449,
addition of the Botox injections reduced the frequency and
intensity of Plaintiff s migraines but the headaches
nevertheless persisted. At the suggestions of her treating
physicians, Plaintiff documented her migraines in a personal
journal. Tr. 55. Initially, after her Botox injections began,
the migraines were reduced from twenty five per month to two
to three per month. However, in June 2014, Plaintiff reported
that she was experiencing five migraines every two weeks. Tr.
483, 505. By December 2014, she was experiencing eight
migraines a month and the Botox was not reducing the
intensity of the headaches. Tr. 673. By early 2015,
Plaintiffs VA record documented that the therapeutic benefits
of the Botox injections were decreasing and she had seventeen
episodes of migraines over the prior twelve weeks, with one
cluster of headaches running for nearly two weeks. Tr. 862.
In March 2015, Dr. Waheed, a treating neurologist, noted that
Plaintiff was experiencing five to six migraines per month,
but stated in a March 2016 office record that the intensity
and frequency of the headaches had increased. Tr. 693. Dr.
Eppig, a treating VA pain medicine specialist, also
documented in a March 2016 note the increasing intensity and
frequency of Plaintiff s migraines, then occurring fifteen
times in the ...